A spina bifida patient has successfully sued her mother’s GP in a ground-breaking legal case, arguing that if her mother had been given adequate advice, she would never have been conceived or born.
Evie Toombes, 20, is a showjumper who was born with a defect causing spinal cord tethering, meaning she has restricted mobility and is doubly incontinent.
London High Court Judge Rosalind Coe ruled yesterday (1 December) that Dr Philip Mitchell, a GP partner at Hawthorn Medical Practice in Skegness at the time, was liable for damages from Ms Toombe’s ‘personal injury arising from her disability’ due to his inadequate advice to her mother on folic acid supplements.
The law forbids children born with disabilities from pursuing ‘wrongful life’ cases, arguing that they should never have been born, but a High Court judge ruled last year that Ms Toombe’s case could go ahead as it fell under ‘wrongful conception’ and was consistent with the Congenital Disabilities (Civil Liability) Act 1976.
Mrs Justice Lambert approved the case on the grounds that there had been ‘a wrongful act (negligent advice) leading to an occurrence (sexual intercourse in a folic acid deficient state) which resulted in a child born with disabilities due to that deficiency of folic acid’.
The amount of the damages will be determined at a later hearing but would be ‘into the millions’ as it must cover the lifetime costs of extensive care, the Times reported.
Barrister Susan Rodway reflected that the landmark ruling means ‘a healthcare professional can now be found liable for negligent pre-conception advice which results in the birth of a child with a serious health condition’.
Moore Barlow solicitor Tim Spring, from the firm which represented Ms Toombes, said it was an ‘unusual’ case and ‘requir[ed] the law to be clarified’.
In February 2001, Mrs Caroline Toombes, Ms Toombe’s mother, attended a ‘pre-conception consultation’ to ask Dr Mitchell’s advice on what she should do before attempting to fall pregnant.
As it was over 20 years ago, Dr Mitchell had no recollection of the appointment and had to rely on his ‘usual standard practice’ and GP note, which read: ‘Preconception counselling. adv. Folate if desired discussed’.
In his statement, Dr Mitchell said at the time, his normal advice to patients was to tell them that ‘relevant guidance recommends folic acid supplementation of 400 µg daily for women preparing for pregnancy and during the first trimester’.
However, the court accepted Mrs Toombes’ assertion that Dr Mitchell did not tell her about the relationship between folic acid supplements and the prevention of neural tube defects, such as spina bifida.
She claimed he said that folic acid supplements were ‘not necessary’ if she maintained a good diet.
The Court found that Mr Mitchell did not give Mrs Toombes enough advice, and that if the advice had been adequate, she would have taken folic acid supplements earlier and delayed conception.
In her approved judgement, Judge Coe wrote that ‘a later conception would have been of a normal healthy individual’.
Clyde & Co, the law firm which represented Dr Mitchell, said the ruling was ‘a reminder to medical practitioners of the need to take clear and detailed notes of their consultations’.
It said: ‘Without the evidence of a clear and contemporaneous note of the consultation to substantiate the doctor’s version of events, such claims are often difficult to defend – this is the case even when a doctor is adamant they would have followed their usual and routine practice which is deemed not to be negligent.
‘It is also imperative that doctors ensure their patients understand the advice they are being given and that any patient’s questions and answers given are recorded.’
The Doctor’s Association UK said it was ‘really concerned’ about the case’s outcome and are ‘actively looking now at how we can support’ Dr Mitchell.
In September, the Government announced that folic acid will be added to flour in the UK in a bid to avoid around 200 spinal conditions in babies each year.